Mass. Medical Marijuana Caregiver Sues State

A Reading resident forced by the state to stop operating as a medical marijuana caregiver is suing the Department of Public Health, saying the agency is blocking patients' legally mandated access to marijuana.

Bill Downing insists he wasn't breaking the law by selling medical marijuana to more than 1,000 patients through his delivery service. He's asking a judge to allow him to operate again.

DPH recently sent Downing and 16 other caregivers cease and desist orders, stating DPH regulations "specifically provide that 'an individual may not serve as a personal caregiver for more than one registered qualifying patient at one time.' "

After ordering the caregivers to immediately stop operations, the letters state that the caregivers' registration cards are "now deemed invalid."

DPH won't comment on the lawsuit, beyond releasing a copy of the letter.

Downing says DPH's regulations violate the medical marijuana law approved by voters in 2012, which didn't call for a one-patient-to-one-caregiver system.

"The idea that we would have enough caregivers so that each patient could have their own separate caregiver is just totally ridiculous. It's an obvious attempt by the Department of Health to eliminate the caregiving function," Downing said. "They were stepping beyond their purview when they wrote many of these regulations. And we're going to take them to task for it, because many of these regulations do whatever they possibly can to eliminate the availability of cannabis for patients."

Downing's suit, filed in Suffolk Superior Court, seeks an injunction that would allow him to once again provide marijuana to more than one patient.

More than 1,300 patients also received letters from DPH, according to the agency. Those letters tell the patients their caregiver is in violation of the one-patient rule and that the patient can choose a new caregiver or determine that they "no longer require the services of a personal caregiver at this time."

The letter does not note that qualified medical marijuana patients — who must have a certification letter from a physician — are allowed to grow marijuana for themselves.

Fifteen of Downing's patients joined his lawsuit, saying they now can't get their marijuana for conditions including multiple sclerosis and cancer.

Several of them submitted sworn affidavits to the court. In one of them, Michael Glenn, of Arlington, says he suffers from migraine headaches and grand mal seizures.

"The services Mr. Downing provided me ... [have] been invaluable in allowing me to treat my conditions with marijuana of known quality," Glenn's affidavit reads.  "I find it to be more effective with less severe side effects than prescription medications I have taken."

In the court documents, which are posted on Downing's Yankee Care Givers website, the patients also say they are not in the position to grow their own marijuana. They attest to "anxiety, fear, and anger" upon receiving the DPH letter informing them that Downing's services would no longer be available. They attribute the anger to DPH's failure to register any medical marijuana dispensaries by the end of 2013, as required under the state law.

In January, DPH announced it had provisionally approved 20 medical marijuana dispensaries to move forward in the licensing process. But after revelations that some applicants misrepresented support from local and state officials, didn't reveal criminal backgrounds of executives, or had management structures that violated the requirement that dispensaries be nonprofit, DPH launched a more thorough "verification" process. That ended in late June, when DPH disqualified nine of the 20 planned dispensaries.

Downing previously sold marijuana directly to patients out of his Reading home. When WBUR interviewed him there in February, a steady stream of people knocked on the basement door and walked in to buy their marijuana. Downing, who requires patients to show their doctors' letters and faxes information on every patient to DPH, said at that time he was serving more than 350 patients.

Not long after that February interview, Downing says Reading Police warned him he was a likely robbery target. He shut down his home-based operation and began running a delivery-only service out of a commercial office space. He says the change brought hundreds of new patients, since many are so sick they can't travel to pick up their medicine.

Downing openly acknowledges he gets most of the marijuana he sells from the black market — dealers he says he's known for decades. He has the marijuana tested at a lab in Framingham for potency and safety, looking for things like molds.

In response to WBUR's previous report, DPH said any caregiver or patient in the medical marijuana program who gets the drug from the black market is breaking the law. But Downing says the law doesn't specify where caregivers acquire the plant.